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Copyright (c) 1992 Georgetown Law Journal
Georgetown Law Journal

August, 1992

80 Geo. L.J. 2093

LENGTH: 9297 words



SYMPOSIUM: HONORING JUSTICE THURGOOD MARSHALL: Choices and Constraints: For Justice Thurgood Marshall.



MARTHA MINOW*


 
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*Professor of Law, Harvard University; Law Clerk to Justice Thurgood Marshall, 1980 Term. Thanks to Joe Singer, Vicky Spelman, Betsy Clark, Mary Ann Glendon, Frank Michelman, and Avi Soifer for helpful discussions about the issues explored here.
 
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SUMMARY:
  ... Yet, as Justice Thurgood Marshall reminded the nation during its celebration of the Constitution's bicentennial, these guarantees have depended upon momentous social struggles, a civil war, and amendments to the Constitution. ... Yet, as Elizabeth Fox-Genovese argues, this very statement could instead merely reiterate the gender-based assumptions of the white men who recorded facts of rebellions, or neglect the choices exercised by slave women to care for their children rather than rebel. ... CHOICE AND CONSTRAINT IN JUSTICE MARSHALL'S JURISPRUDENCE ... In his approach, Justice Marshall exposed the mistake made in treating choice as an all-or-nothing proposition or as an on/off variable. ... In classroom discussions of domestic violence against women, students often ask, "why doesn't she leave?" Feminist commentators tend to reject this question because it blames the woman and because it neglects the constraints she may experience due to economic dependency and a commitment to her children. ... Women can pursue nontraditional jobs, but they then often face sexual harassment at the workplace and disapproval by friends and family members, even assuming they secure employment. ... Justice Thurgood Marshall offered a way of understanding these issues that should set off a warning light whenever we see the word "choice" used in legal and political contexts to assign responsibility or liability. ...  



"Alternatives, and particularly desirable alternatives, grow only on imaginary trees."

Saul Bellow, Dangling Man (1944) n1
 
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n1 INTERNATIONAL THESAURUS OF QUOTATIONS 80 (Rhoda Thomas Tripp ed., 1970).
 
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"I mean to resist the hatred of these times any way that I can."

June Jordan, On Call (1985) n2
 
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n2 JUNE JORDAN, ON CALL 18 (1985).
 
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TEXT:
     [*2093]  A supermarket near my house goes by the name of "Foodstyles." Its sign includes the slogan: "The choice is yours." When I pass this store, I cannot help but must about the celebration of choice in America. Of course, even choices about groceries are a privilege, given the persistence of hunger in this country and food shortages around the globe. Yet the relentless marketing of choice itself is a peculiar American quality. n3 It may diminish by its very pervasiveness the magnificence of choice as an ideal that reaches far beyond the selection of commodities.
 
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n3 See LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE 192 (1990) (in new legal culture, people aim to go through life like shoppers selecting clothes, food, religion, sexual partners, family patterns, jobs, and ideas).
 
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American law at its best often protects people's freedom to make choices about their lives. The Constitution, in particular, admirably claims to guarantee religious freedom, freedom to form families and procreate or choose not to, freedom to pursue a chosen line of employment, and freedom to offer artistic or political expression. Yet, as Justice Thurgood Marshall reminded the nation during its celebration of the Constitution's bicentennial, these guarantees have depended upon momentous social struggles, a civil war, and amendments to the Constitution. n4 The original language and early interpretations of the Constitution did not produce or realize the guarantees of choice. Nor would the document, even as amended, do so without constant vigilance and struggle now and in the future.
 
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n4 Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 HARV. L. REV. 1, 2 (1987).
 
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A recent threat to individual freedoms and human rights, perhaps ironically, stems from a tendency among many judges and officials to assert that  [*2094]  someone has a choice. While laudable for the respect it seems to accord individuals, the legal rhetoric of choice -- including discussions of voluntariness -- is too often used to assign responsibility to someone who had little power to choose, or to infer a waiver of right by someone caught in severe constraints. It is a mistake to say someone has a choice when he or she does not. Yet it is also a mistake to say someone has no choices when he or she does. I will explore examples of both mistakes and trace their origin to an erroneous view that choice is either all-present or all-absent. Instead, I suggest a more fruitful conception locates human choices within varying degrees of constraints.

That more fruitful conception is inspired by the positions taken in many cases by Justice Thurgood Marshall. His judicial opinions acutely described constraints on human choices and articulated a theory of the relationship between choice and constraint that should serve as a corrective to the common mistakes made about choice. I will draw upon this theory in proposing a mental warning light any time a judicial opinion or other authoritative source declares that someone had and exercised a choice -- a warning light that reminds us to ask about the shape and degree of constraints on that choice. Compared with assertions or denials of choice, this is a more honest and effective way to ensure the vitality of critical human freedoms. Searching for ways to ensure such freedoms is one path for those who want not only to honor Justice Marshall with celebratory words, but also to continue his struggles for justice.

I. MISTAKES ABOUT CHOICE

Do extreme constraints leave people with no choices? Denying that someone has any choice may be a denial of dignity and a refusal to recognize that freedom was actually exercised. Just such denial and refusal accompany accounts of American slavery that neglect the agency of the slaves. Historians such as Eugene Genovese and Herbert Gutman, in contrast, demonstrated the choices made by slaves as they crafted religious and family practices despite complex structures of physical and economic coercion. n5 When revolts came to seem suicidal, the slaves remained within the interstices of control set by their owners and created communities worth living in -- with the real limitation that "their very strategy for survival enmeshed them in a web of paternalistic relationships which sustained the slave-holders' regime despite the deep antagonisms it engendered." n6 Slaves also devised methods of day-to-day resistance, including "stealing, lying, dissembling, shirking, murder,  [*2095]  infanticide, suicide, [and] arson." n7
 
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n5 See EUGENE D. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES MADE 209-32, 482-519 (1972); HERBERT G. GUTMAN, THE BLACK FAMILY IN SLAVERY AND FREEDOM, 1750-1925 3-44 (1976).

n6 GENOVESE, supra note 5, at 594.

n7 Id. at 598.
 
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Recognizing choice here means articulating as resistance -- and thus as the exercise of choice -- conduct that in the past had been seen as despairing or simply bad. Yet even with this expanded recognition of choice, some people's choices might remain invisible. For example, the relatively low participation of female slaves in the active rebellion could be viewed as a sign that they fell under greater restrictions than male slaves, restrictions that included confining gender roles. n8 Yet, as Elizabeth Fox-Genovese argues, this very statement could instead merely reiterate the gender-based assumptions of the white men who recorded facts of rebellions, n9 or neglect the choices exercised by slave women to care for their children rather than rebel. n10
 
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n8 ELIZABETH FOX-GENOVESE, WITHIN THE PLANTATION HOUSEHOLD: BLACK AND WHITE WOMEN OF THE OLD SOUTH 53 (1988).

n9 Id. at 303.

n10 Id. at 304. Fox-Genovese also explores the specific forms of resistance undertaken by black women slaves against their white mistresses. Id. at 308-09, 332-33.
 
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Similarly, failure to recognize choice produces the conclusion that some people are simply passive victims or dupes when, in fact, they may be making quite deliberate and respectable decisions. For example, Westerners may pity the widow who sacrifices herself at her husband's funeral in the Hindu practice of Sati. But this view neglects the possibility that the widow who participates is not a passive victim but instead is choosing what she understands to be an improved spiritual status. n11 This possibility then should shift attention to the limited array of options that make self-sacrificial suicide seem attractive.
 
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n11 See V.N. DATTA, SATI: A HISTORICAL, SOCIAL AND PHILOSOPHICAL ENQUIRY INTO THE HINDU RITE OF WIDOW BURNING (1988). See also Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. (forthcoming 1992) (considering the possibility that women who perform cliterectomies and women who accept them understand that the costs of refusal would be worse).
 
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Novelists sometimes provide this kind of attention when they explore moments of self-sacrifice. Novelists explore self-sacrifice as an expression of human freedom and strength in highly constrained circumstances. For example, in Andre Malraux's Man's Fate, a novel about the Chinese revolution, a group of revolutionaries await their deaths in prison. n12 One has managed to smuggle along a cyanide capsule which, in this desperate context, represents the last chance for self-control and freedom: its possessor could at least choose the moment and means of her own death. In an act of enormous generosity and self-sacrifice -- and a further act of freedom -- its owner gives the capsule to two other prisoners. n13 It is a gift of self-denial offered to affirm  [*2096]  human connection. n14
 
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n12 ANDRE MALRAUX, MAN'S FATE (Haakon M. Cheavlier trans., 1934).

n13 Id. at 326-28.

n14 See Martha Minow, Speaking of Silence, 43 U. MIAMI L. REV. 493, 502-05 (1988) (reviewing KRISTIN BUMILLER, THE CIVIL RIGHTS SOCIETY: THE SOCIAL CONSTRUCTION OF VICTIMS) (discussing Malraux's Man's Fate; Alice Walker's The Color Purple, where a man chose to undergo ritual scarring, as his wife had, so he could share her stigmatization; and Toni Morrison's Beloved, where a mother killed her beloved ghost-daughter to prevent her enslavement).
 
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In the recent movie, Black Robe, a Native woman saves the lives of her father, a missionary, and herself in eighteenth century Canada by inviting and then submitting to sexual intercourse with the man assigned to guard them. These acts enable her to distract and disarm the guard; she in a profound sense chose them, but within extreme constraints.

Discerning the choices people make under massive restraints can accord them dignity and respect while highlighting the sources and shapes of their constraints. Yet asserting that people have choices in constraining circumstances can lead to mistaken conclusions. Mistakes arise if the assertion implies a broader range of choices than the constraints permit or if it leads others to assign responsibility for results not chosen.

Consider what happened to Terrence Bostick. n15 He bought a ticket and boarded a bus traveling from Miami to Atlanta. During a stopover in Fort Lauderdale, two police officers boarded the bus; one visibly carried a pistol in a holster. n16 Without any "articulable suspicion," n17 they focused on Bostick, and asked to see his ticket and identification. The officers found no problem with these items, but nonetheless asked for Bostick's consent to search his luggage as part of their effort to find illegal drugs. A dispute arose at trial over whether Bostick consented and whether he was informed of his right to refuse consent; the trial judge concluded in the affirmative on each issue. n18 The police did find cocaine in Bostick's bag, and the trial court, the state appeals court and supreme court, and the United States Supreme Court each considered whether the seizure of the narcotics violated Bostick's Fourth Amendment right against search and seizure without particularized suspicion. n19
 
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n15 Florida v. Bostick, 111 S. Ct. 2382 (1991).

n16 Id. at 2384-85 (quoting 554 So. 2d 1153, 1154-55 (Fla. 1989)).

n17 Id.

n18 Id. at 2385.

n19 Bostick's conviction was affirmed by the state appeals court, then reversed by the state supreme court. The U.S. Supreme Court reversed and remanded for reconsideration under the standards announced in its opinion. Id.
 
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In its majority opinion written by Justice O'Connor, the Supreme Court maintained that a seizure does not occur "[s]o long as a reasonable person would feel free 'to disregard the police and go about his business.'" n20 Bostick argued that a reasonable person would not feel free in that way because the encounter occurred in the cramped confines of a bus, the police towered  [*2097]  over a seated passenger, and there was little room to move around to avoid the investigation. n21 He also argued that a reasonable bus passenger would not feel free to leave given the imminent departure of the bus and the presence of his luggage in its luggage compartment. n22 Justice O'Connor emphasized Bostick's status as a passenger on a bus that was scheduled to depart, not the police conduct, as the cause of his feeling unfree to leave. n23 "Bostick's movements were 'confined' in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive." n24 Thus, Bostick's choice to ride the bus, not the police conduct, resulted in his being confined and constrained. Although the opinion for the Court acknowledged that "[t]he cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary," n25 the Court rejected the view that this factor alone would be sufficient to bar such police conduct across the board. The majority's analysis identifies the defendant's possibility of choice and then attributes responsibility to the defendant for the constraints imposed by the government. It would be wrong to conclude, in contrast, that Bostick had no choices; he did. But to avoid treating choice as all-or-nothing or as the determinant of moral and legal questions, the better question to ask is whether his actual degrees of freedom permitted a sufficient ambit of choice to justify holding him accountable in the face of governmental force. n26 That question is obscured by the majority's mere assertion that he had a choice.
 
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n20 Id. at 2386 (quoting California v. Hodari D., 111 S. Ct. 1547, 1551 (1991)).

n21 Id.

n22 Id. at 2386-87.

n23 Id. at 2387.

n24 Id.

n25 Id. at 2389.

n26 For a discussion of degrees of freedom, see 3 THE NEW ENCYCLOPEDIA BRITANNICA 463 cols. 2-3 (1974) ("The number of degrees of freedom is reduced by constraints such as the requirement that a point move along a particular path" and "[i]f, in a statistical sample distribution, there are n variables and m constraints on distribution, there are n-m degrees of freedom.").
 
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II. CHOICE AND CONSTRAINT IN JUSTICE MARSHALL'S JURISPRUDENCE

Justice Marshall's dissent in Florida v. Bostick n27 illustrates a contrasting approach to choice and constraint, an approach that avoids the mistakes of denying choice where it is present and finding choice where it is lacking. The dissent located the freedom Bostick had within the sharp confines presented. Unlike the majority opinion, the dissent refused to attribute unqualified choice to Bostick and then hold him responsible for the consequences. Thus, the dissent maintained that Bostick "had only two options. First, he could have remained seated while obstinately refusing to respond to the officers'  [*2098]  questioning." n28 And second, Bostick "could have tried to escape the officers' presence by leaving the bus altogether." n29
 
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n27 111 S. Ct. at 2389 (Marshall, J., dissenting, joined by Blackmun and Stevens, JJ.).

n28 Id. at 2393.

n29 Id.
 
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Then, the dissent articulated the constraints on these limited options:

[I]n light of the intimidating show of authority that the officers made upon boarding the bus, respondent [Bostick] reasonably could have believed that such behavior [refusing to respond to questioning] would only arouse the officers' suspicions and intensify their interrogation. Indeed, officers who carry out bus sweeps like the one at issue here frequently admit that this is the effect of a passenger's refusal to cooperate. n30
 
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n30 Id. (citing United States v. Cothran, 729 F. Supp. 153, 156 (D.D.C. 1990); United States v. Felder, 732 F. Supp. 204, 205 (D.D.C. 1990)).
 
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And if Bostick pursued the second option and tried to leave the bus, "doing so would have required [him] to squeeze past the gun-wielding inquisitor who was blocking the aisle of the bus," an option that hardly seems realistic. n31
 
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n31 Id.
 
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Moreover, reasoned Justice Marshall, the majority seemed to be playing logic games by attributing the consequence that Bostick did not feel free to leave the bus to his choice to take a bus. "Obviously, a person's 'voluntary decision' to place himself in a room with only one exit does not authorize the police to force an encounter upon him by placing themselves in front of the exit." n32 Here, Justice Marshall emphasized that even if a passenger on an interstate bus trip sought to avoid the police by exiting the bus, he or she would have been stranded in an unfamiliar place. n33
 
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n32 Id. at 2394.

n33 Id.
 
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At this point, the dissent used an assertion that illuminates the confusion spawned by the rhetoric of choice. Justice Marshall noted that "[i]t is exactly because this 'choice' is no 'choice' at all that police engage this technique." n34 The use of quotation marks allowed Justice Marshall to distinguish the attribution of choice asserted by the majority from the ideal of choice that justifies the assignment of responsibility. In addition, the sentence points to the deliberate exploitation by the police of the bus passenger's vulnerability. This underscored how anyone -- except, perhaps, the Supreme Court majority -- would fully comprehend that Bostick lacked any meaningful options besides cooperation with the police. In the context of Marshall's opinion, the sentence does not mean that Bostick literally had no degrees of freedom, but instead that the constraints arose from the kind of coercion the Constitution forbids. n35 In this dissenting opinion and others, Justice Marshall  [*2099]  advanced a theory that avoided the mistake of attributing "choice" where it was absent. His theory refrained from using "choice" to stand in for assessments of responsibility for the constraints people experience. n36 That theory includes three elements: (1) finding that someone has a choice does not answer the scope of the available options; (2) finding that someone has a choice does not reveal how plausible or reasonable it would be to pursue the available options; (3) only an assessment of the constraints and costs affecting the scope and real availability of the options can render a meaningful inquiry into an individual's responsibility for the choice undertaken.
 
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n34 Id.

n35 Justice Marshall's preferred remedy would actually be quite modest: he called upon the police to advise passengers confronted on such buses of their right to decline to be questioned and thereby "dispel the aura of coercion and intimidation that pervades such encounters." Id. at 2395.

n36 For other examples, see, e.g., Illinois v. Perkins, 110 S. Ct. 2394, 2401 (1990) (Marshall, J., dissenting) (objecting to majority's finding of no coercion when an undercover agent pretended to be a prisoner and questioned the defendant as if they were fellow inmates with no disclosure of his identity or warning about the defendant's rights against self-incrimination); Colorado v. Spring, 479 U.S. 564, 577 (1987) (Marshall, J., dissenting) (objecting to majority's conclusion that the defendant voluntarily waived his Fifth Amendment right against self-incrimination when he agreed to be interrogated about one offense without knowing that the police also intended to question him about another specific crime); New York v. Quarles, 467 U.S. 649, 674 (1984) (Marshall, J., dissenting) (objecting to majority's finding of no Fifth Amendment violation when, in the middle of the night at the back of an empty supermarket, four armed police officers directed pointed questions to a handcuffed defendant without giving Miranda warnings).
 
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Another example illuminates Justice Marshall's theory. In Selective Service System v. Minnesota Public Interest Research Group, n37 the Court rejected claims that the federal law denying higher education financial assistance to any male student who failed to register for the draft violated the Fifth Amendment protection against self-incrimination, the ban against bills of attainder, and the equal protection guarantee.
 
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n37 468 U.S. 841 (1984).
 
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Justice Marshall dissented, even though he acknowledged that the federal statute left students some choices. n38 He noted first how the statute narrowed the choices of students: although it did not compel registration for the draft, it forced reporting of potentially self-incriminating information about whether or not the student had registered. n39
 
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n38 Id. at 862, 867 (Marshall, J., dissenting).

n39 Id. at 867.
 
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Second, he acknowledged that a student need not apply for federal financial assistance, but he evaluated the viability of that option in practice. Here, he reasoned that "[a]ll students understand that entry into most professions and technical trades requires postsecondary education. For students who cannot otherwise afford this education, compliance with . . . [the statute] is coerced by the threat of foreclosing future employment opportunities." n40 Of course, a student could choose to forego the financial support, but that would entail giving up most viable career possibilities -- at least for those who could  [*2100]  not otherwise finance their educations. n41
 
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n40 Id. at 870.

n41 This distinction on the basis of financial status supported Justice Marshall's reasoning that the statute violated the equal protection guarantee; "[o]nly low-income and middle-income students will be caught in this trap." Id. at 876 (quoting 128 CONG. REC. H18356 (1982) (statement of Rep. Moffet). See also id. at 879 ("While all nonregistrants are subject to imprisonment and fine, only those nonregistrants who qualify for education aid based on need are subjected both to that criminal process and to the economic compulsion imposed by the loss of financial aid."). For an excellent exploration of general issues of coercion accompanying conditions on public funding, see Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989).
 
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Thus, Justice Marshall called for and undertook an evaluation of the scope of the choices actually available to the students and of the costs they would have to bear if they pursued the choice that would preserve their freedom from self-incrimination. Through this method, he concluded that the constraints imposed by the federal law were too great to assign responsibility to students for the constricted choices it left them. n42
 
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n42 This method resembles the analysis given by the legal realists of economic coercion in contract law. The realists rejected classical claims to distinguish sharply voluntary -- and thus enforceable -- contracts from involuntary ones, and instead argued that every contract involves some degree of coercion. Therefore, legal enforcement of contracts would necessarily involve evaluations about which kinds of coercion should be rejected as a matter of public policy. See generally Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 468, 485-87 (1988) (discussing legal realist treatments of contract law as using public power to achieve social goals).
 
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In his approach, Justice Marshall exposed the mistake made in treating choice as an all-or-nothing proposition or as an on/off variable. Instead, Justice Marshall emphasized that choice should be understood in terms of the degrees of freedom or scope of options framed by constraints. Even the remaining choices in turn should be evaluated in light of the costs incurred by those who pursue them. Ultimate questions of legal judgment -- questions about waiver, responsibility, and the scope of rights against government or private actions -- depend upon these evaluations of constraints and costs, not on the sheer finding of some degree of choice.

This theory avoids the mistake of denying choice where it exists and the mistake of attributing choice where it seems absent. The theory is especially needed today in an era of pervasive choice rhetoric, as the next section will explore.

III. PROBING THE LANGUAGE OF CHOICE AND CONSTRAINT

Mistaken assertions and denials of choice arise not only in discussions of criminal investigations and strings on public funding. Inspired in part by the image of the economic market and in part by the individualist tradition in American liberalism, n43 people use the language of choice to debate the conduct  [*2101]  of battered women and of claimants charging sex discrimination and sexual harassment. Similar language surrounds current debates over reforming public schools. The by-now familiar mistakes in talk of choices arise in each of these contexts; the richer theory of choice and constraint afforded by Justice Marshall's opinions provides a much needed antidote.
 
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n43 It is not just an American tradition. See, e.g., FYODOR DOSTOEVSKY, NOTES FROM UNDERGROUND (1864) quoted in INTERNATIONAL THESAURUS OF QUOTATIONS 80 (Rhoda Thomas Tripp ed., 1970) ("What man wants is simply independent choice, whatever that independence may cost and wherever it may lead.").
 
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A. BATTERED WOMEN

In classroom discussions of domestic violence against women, students often ask, "why doesn't she leave?" Feminist commentators tend to reject this question because it blames the woman n44 and because it neglects the constraints she may experience due to economic dependency and a commitment to her children. n45 Instead, feminist critics emphasize these constraints and call for attention to questions about why men batter women, how women can be justified when they defend themselves against intimate violence, and what changes in police practices, child custody rules, and shelter and employment programs would help battered women. n46 Yet feminists also struggle with the image of the woman as a passive victim who has no choices or who is subject to a debilitating syndrome. n47 These images risk demeaning women and denying their capacities for choice and for taking advantage of options should they be available. n48 Moreover, such images disadvantage the battered woman who seeks to retain custody of her children, who have also been abused by the man. Thus, some people worry about denying that battered women have choices, while others worry about asserting that these women have more choice than they do.
 
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n44 Some people more directly blame the woman by asking what she did to provoke the violence. See GAIL A. GOOLKASIAN, CONFRONTING DOMESTIC VIOLENCE: A GUIDE FOR CRIMINAL JUSTICE AGENCIES 2-4 (1986) (discussing myths about domestic violence).

n45 See generally Christine A. Littleton, Women's Experience and the Problem of Transition: Perspectives on Male Battering of Women, 1989 U. CHI. LEGAL F. 23.

n46 See Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041, 1064-82, 1088 (1991) (discussing legislative and judicial approaches to the consideration of domestic violence in child custody proceedings); Elizabeth M. Schneider, Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering, 9 WOMEN'S RTS. L. REP. 195 (1986) (discussing use of expert testimony in domestic violence cases and the ramifications for feminist legal theory); Recent Development, Mandatory Arrest for Domestic Violence, 11 HARV. WOMEN'S L.J. 213 (1988) (arguing that mandatory arrest laws would reduce incidents, increase prosecution, and help women receive victim services).

n47 See Tamar Lewin, Feminists Wonder if it Was Progress to Become 'Victims,' N.Y. TIMES, May 10, 1992, 4, at 6.

n48 See Schneider, supra note 46, at 199.
 
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Hedda Nussbaum, battered by Joel Steinberg, provoked widespread public debate on exactly this issue after Steinberg beat their adopted daughter Lisa and after Nussbaum failed to call for help. n49 Susan Brownmiller attacked the  [*2102]  notion that Nussbaum lacked choice; n50 an anonymous commentator defended Nussbaum through reference to her own experience of powerlessness in a comparable situation. n51
 
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n49 See SAM EHRLICH, LISA, HEDDA & JOEL, THE STEINBERG MURDER CASE (1989).

n50 Susan Brownmiller, Hedda Nussbaum, Hardly a Heroine . . ., N.Y. TIMES, Feb. 2, 1989, at A25.

n51 . . . But You Can't Imagine, N.Y. TIMES, Feb. 2, 1989, at A25.
 
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Both sides in this debate treat choice as all or nothing. More plausible are descriptions of the actual exercise of agency by battered women who aim to reduce the violence against them or their children while constantly assessing the risks of doing so. n52 This richer description depends upon a recognition that choices are situated within constraints. In this light, any evaluation of someone who has choice must involve assessing both the degree of choice left by the particular constraints and the costs incurred by exercising the actual ambit for choice. Recognizing that a woman has some -- if very limited -- room for choice in the context of domestic violence does not mean excusing the perpetrator; instead, this approach identifies more points of intervention to help her out.
 
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n52 See Littleton, supra note 45, at 41-44 (describing victims' strategies); cf. supra notes 5-10 and accompanying text (discussing resistance strategies adopted by slaves).
 
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B. EMPLOYMENT DISCRIMINATION

Scholarly and personal accounts demonstrate widespread workplace segregation by race and sex, and workplace harassment on the basis of race and sex. n53 When individuals and groups register complaints about these patterns, however, employers often point to employee choices rather than illicit discrimination as the cause. Thus, in EEOC v. Sears, Roebuck & Co., n54 the defendant employer argued that demonstrated sex segregation in the workplace arose from women's choices not to seek the higher paying commission sales jobs and instead to apply only to lower paying jobs. The district court accepted this argument n55 after hearing testimony from competing experts about the nature and effects of women's culture and preferences. n56
 
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n53 On segregation, see Vicki Schultz, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 HARV. L. REV. 1749 (1990) (arguing that courts in Title VII cases fail to recognize that women form work aspirations in response to employers' structures and cultures, not before they begin working); Vicki Schultz & Stephen Petterson, Race, Gender, Work and Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation, U. CHI. L. REV. (forthcoming 1992). On harassment, see CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979); Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 STAN. L. REV. 1 (1988) (exploring how tort law can help minorities and women oppose, rather than critique mistreatment on the job).

n54 628 F. Supp. 1264 (N.D. Ill. 1986), aff'd, 839 F.2d 302 (7th Cir. 1988).

n55 Id. at 1305-15.

n56 For discussions of the case by the competing experts, see Alice Kessler-Harris, Equal Employment Opportunity Commission v. Sears, Roebuck and Company: A Personal Account, 35 RADICAL HIST. REV. 57 (1986); Rosalind Rosenberg, What Harms Women in the Workplace, N.Y. TIMES, Feb. 27, 1986, at A23.
 
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 [*2103]  In so doing, the court also accepted the framing of the question in terms of the choices of women employees. The court adopted the view that evidence of women's own lack of interest in the commission sales jobs would exonerate the defendant employer of the charge of illegal discrimination which merely honored those choices. Courts have deployed a similar framework in treating challenges to racial segregation on the job. n57
 
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n57 See, e.g., Arnold v. Ray, 21 Fair Empl. Prac. Cas. (BNA) 793, 795 (N.D. Ohio 1979) (finding evidence of intentional race discrimination in the mayor's testimony that blacks "don't want to be policem[e]n"). See generally Schultz & Petterson, supra note 53, at 6-7.
 
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Striking the same note, employers sometimes defend their abuse of black workers by reference to the workers' own conduct. n58 In essence, the defense is that "they asked for it." Coworkers and employers may also respond to women's claims of sexual harassment on the job by maintaining that women assume the risk of certain kinds of reactions if they enter a male world. n59 A more complicated response by senators and many members of the public greeted Professor Anita Hill's testimony asserting sexual harassment by Clarence Thomas. Many expressed the attitude that, because she chose to continue working for him and chose not to file contemporaneous complaints, Hill's testimony should not affect his elevation to the United States Supreme Court. n60 Some African Americans offered a different but related view that sexual harassment is just something that a woman, and especially a woman of color, has to put up with and does not deserve a priority in social struggles. n61
 
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n58 See Regina Austin & Sharon Dietrich, Employer Abuse of Low-Status Workers: The Possibility of Uncommon Relief from the Common Law, in THE POLITICS OF LAW 350, 357-58 (David Kairys rev. ed., 1990).

n59 See Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1525-26 (M.D. Fla. 1991) (rejecting defendant's argument that preexisting state of the workplace and woman's voluntariness in entering a work environment condoning sexual abuse and pornography should receive weight in "hostile environment" case). Male defendants often raise similar defenses in rape cases.

n60 For an extended and complex discussion of the issues raised by Anita Hill's testimony, see the exchange between Orlando Patterson and Rhonda Datcher in 1 RECONSTRUCTION 64-77 (1992).

n61 See Interview with Patricia King, 1 RECONSTRUCTION 61, 62 (1992).
 
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In each of these contexts, people have treated the presence of a choice potentially available to a complainant as a defense against a defendant's alleged wrongdoing. This way of structuring the issue pays little or no attention to the scope of constraints on the complainant and the cost of exercising choice. Anita Hill could have lodged a sexual harassment complaint at the time of the incidents, but she then would have faced losing job opportunities in the civil rights field and the career support of her high status employer. Women can pursue nontraditional jobs, but they then often face sexual harassment  [*2104]  at the workplace and disapproval by friends and family members, even assuming they secure employment.

By contrasting a complainant's choices with an employer's coercion, this framework fails to acknowledge the complex interactions among choice and constraint, resistance and response. n62 The framework creates a dilemma: it implies that in order to present a convincing complaint, white women and people of color must present themselves as passive and helpless victims lacking any capacity for choice or else assert their own agency and then lose the claim. n63
 
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n62 For scholarly treatments of these complex dimensions, see, e.g., Schultz, supra note 53 (challenging assumptions underlying courts' explanations of sex segregation as women's "choice"); Joan W. Scott, Deconstructing Equality-Versus-Difference: Or, the Uses of Poststructuralist Theory for Feminism, 14 FEMINIST STUD. 33 (1988) (describing the negative consequences of the impossible choice between "equality" and "difference" in feminist theory; using the issue of women's "choice" in EEOC v. Sears Roebuck & Co. to illustrate); Joan Williams, Deconstructing Gender, 87 MICH. L. REV. 797 (1989) (arguing against the theory that a woman "chooses" economic marginalization).

n63 Cf. Minow, supra note 14 (arguing that victims of discrimination often choose not to complain because the economic and emotional costs of litigation make it an unattractive choice).
 
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In her work on sex segregation at the workplace, Vicki Schultz puts the problem this way: "[T]he courts have created a framework for interpreting sex segregation that posits two mutually exclusive explanations: women's 'choice' and employers' 'coercion.'" n64 The defect she locates in this framework is that both explanations "assume that women bring to the labor market fixed preferences for traditional or nontraditional jobs." n65 Instead, Schultz argues, sociological evidence shows that "women develop their work preferences only in the context of and in response to structural features of the workworld itself." n66 Employers -- and legal rules -- create the contexts and the constraints within which women form their job preferences. A focus on women's choices in isolation from the contexts influencing them produces faulty understandings while also diminishing women's chances of successful complaints against job segregation. n67 No correct answer can emerge from a question treating employee choice and employer coercion as the only alternatives. The route of analysis suggested by Justice Marshall would inquire into the extent of constraints on individual choice and the costs of exercising  [*2105]  choice. Social and political judgments then would have to be made about what kinds of constraints and costs should not be borne by individuals. n68 Rendering those constraints and costs explicit makes clear that social and political, rather than simply empirical, judgments about the presence or absence of choice, await.
 
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n64 Schultz, supra note 53, at 1756-57.

n65 Id. at 1757.

n66 Id.

n67 At stake in the characterization of the job segregation complaints is not just who wins or loses, but also who should bear responsibility for broad societal attitudes, employees or employers. The argument that women simply lacked sufficient interest to apply for valuable "nontraditional" jobs attributes the responsibility for social attitudes to the women who reflect them; the argument that employers failed to seek women for nontraditional jobs assigns them responsibility for overcoming the weight of societal stereotypes and values. Schultz's interaction thesis connects both women employees and employers to broader social attitudes; she then argues that courts ultimately have the choice about how to shape the conditions under which employment preferences and practices continue. Schultz, supra note 53, at 1839-43.

n68 Raising matters of social and political judgments, the recent Supreme Court decision in Int'l Union, UAW v. Johnson Controls, Inc., 111 S. Ct. 1196 (1991) reserves for women the choice whether to work at jobs that potentially endanger fetuses but apparently leaves them alone to bear the costs of that risk. Successful as a challenge to gender stereotypes and employer paternalism, the decision raises new questions about who should bear the costs of hazardous workplaces. Assuring women's choices to work in such a setting, even with the employer's monitoring of her blood for actual danger levels of toxic exposure, should not entail leaving the financial burden posed by raising a child damaged by that workplace entirely to her.
 
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C. SCHOOL REFORM

A flood of choice rhetoric surrounds contemporary debates over reforming public schools. Epitomized by the book, Politics, Markets, and America's Schools, by John E. Chubb and Terry M. Moe, n69 and by a proposal endorsed by President Bush, n70 advocates of choice urge replacing the democratic or expert control of schools with market type controls. n71 On behalf of their children, parents should be able to apply to a variety of schools; schools in turn should be permitted to select or expel students on a range of criteria, and through the resulting competition, all schools could strive for the virtues demonstrated by private schools.
 
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n69 JOHN E. CHUBB & TERRY M. MOE, POLITICS, MARKETS, AND AMERICA'S SCHOOLS (1990).

n70 See Susan Chira, Bush School Plan Would Encourage Choice by Parents, N.Y. TIMES, Apr. 19, 1991, at A1, B7.

n71 Earlier examples of choice proposals include JOHN E. COONS & STEPHEN D. SUGARMAN, EDUCATION BY CHOICE: THE CASE FOR FAMILY CONTROL (1978) (advocating "voucher" system to provide choice); Milton Friedman, The Role of Government in Education, in ECONOMICS AND THE PUBLIC INTEREST 123 (Robert A. Solo ed., 1955). Choice plans vary over whether to include private and public schools, and whether to include religious schools. Public financial support of religious schools could pose problems under current understandings of the Establishment Clause. See Aguilar v. Felton, 473 U.S. 402 (1985) (use of federal funds to pay salaries of public school employees who teach nonreligious courses in parochial schools violates Establishment Clause); Lemon v. Kurtzman, 403 U.S. 602, reh'g denied, 404 U.S. 876 (1971) (statute providing salary supplement to teachers teaching secular courses in nonpublic schools and statute authorizing state purchase of secular educational services from nonpublic schools are unconstitutional under First Amendment).
 
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Critics cite analytic defects in such proposals. n72 In addition, choice models could undermine fundamental goals of public schools, including: (1) assuring freedom from racial and class segregation; (2) assuring equal opportunity; and (3) assuring a common curriculum and school experience  [*2106]  to prepare diverse people for citizenship. n73 Some models of school choice try to accommodate these goals, n74 and all the proposals retain some degree of public regulation. n75 The rhetoric of choice nonetheless obscures the disparities in the scope of choices parents would experience even under the best possible plan.
 
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n72 For a thorough analysis of the defects in the empirical and conceptual dimensions of Politics, Markets, and America's Schools, see James S. Liebman, Voice, Not Choice, 101 YALE L.J. 259 (1991) (book review).

n73 See Brown v. Board of Educ., 347 U.S. 483, 493 (1954); AMY GUTMANN, DEMOCRATIC EDUCATION 49, 128, 160-62, 185 (1987).

n74 The controlled choice plans used in Massachusetts include restrictions based on racial balance while also permitting individual schools to acquire a critical mass of students for programs such as bilingual education. See Michael J. Alves & Charles V. Willie, Choice, Decentralization, and Desegregation: The Boston 'Controlled Choice' Plan, in 2 CHOICE AND CONTROL 17 (William H. Clune & John F. Witte eds., 1990).

n75 See, e.g., Liebman, supra note 72, at 261.
 
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First, due to time, experience, and their own educational backgrounds, parents vary in their abilities to make sense of information about schools and to select schools that would best serve their children. Second, due to economic differences, parents vary in their ability to select schools far from home -- schools that would require unsubsidized transportation or otherwise impose costs on the family.

Third, schools themselves are likely to prefer some kinds of students rather than others, and students from higher socioeconomic backgrounds are likely to be preferred and thus to have a wider array of choices. Professor James Liebman argues for this conclusion because:

A school's competitive position depends on its educational performance; its educational performance depends on its students' academic success; its students' academic success depends principally on their parents' and their peers' parents' socioeconomic status; and socioeconomic status depends not only on momentary circumstances (family income) but on long-term traits as well (parents' prior educational attainments). n76
 
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n76 Liebman, supra note 72, at 285 (footnote omitted). Liebman advocates solutions that would mobilize the wealth, ability, and academic orientations of those who are better off on behalf of those who are worse off, and which argue against choice and sorting. Liebman favors methods that would pool students from different backgrounds into the same schools and join their parents in collegial political structures through which they would exercise more democratic control of the schools. Efforts by the highly motivated parents would then benefit all students. Id. at 313.
 
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Putting the point even more bluntly, one teacher warns that teachers and schools will choose students whose parents are professionals and not unemployed or working on shifts; selected students are likely to be well-dressed, healthy, well-nourished, white, free of disabilities, fluent in English, home computer owners, and thus likely to produce high test scores. n77
 
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n77 Jerry Ellsworth, My Turn: Keep Schools Open to All, NEWSWEEK, Mar. 16, 1992, at 16.
 
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The rhetoric of choice in the school context thus can hide patterns of constraints unequally distributed in society. In addition, school plans supposedly designed to promote parental choice may instead leave people exposed  [*2107]  to the noxious constraints of social domination and disapproval. The Supreme Court reached this conclusion in rejecting the "free choice" plan adopted as a desegregation remedy in New Kent County, Virginia. n78 On paper, the plan permitted black parents to send their children to schools in white neighborhoods, but in practice only about ten percent of black families chose to do so. Almost no whites chose to send their children to schools in black neighborhoods. The social context communicated to black families that their children would face hostility in the white neighborhoods. Freedom of choice on paper did not register these real constraints.
 
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n78 Green v. County Bd. of New Kent County, Va., 391 U.S. 430 (1968) (rejecting a freedom of choice plan which functioned to perpetuate segregated schools).
 
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Once again, the theory advanced by Justice Marshall would assist in evaluating choice plans for schools. Close attention to the constraints narrowing people's actual scope of choice and to the costs incurred by exercising choice could cut through much of the rhetoric and identify the disparities likely to render the choice plans unfair. To produce more than a critique of the choice plans, however, further work would be needed to articulate what would be fair as well as efficacious in education. This pursuit is a legacy of Brown v. Board of Education and a fitting continuation of Thurgood Marshall's work before he joined the Court. n79
 
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n79 See generally RICHARD KLUGER, SIMPLE JUSTICE (1976).
 
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IV. THE WARNING LIGHT

It often seems that we have no alternatives. n80 Yet even in situations of the most dire oppression, human beings show capacity for resistance, and for choice about their own destinies. n81 Therefore, it is a mistake to assert that people do not have choices when they do. An equally mistaken notion attributes choice to people when their scope of choice is truncated by external constraints and when the cost of exercising choice is greater than any of us would expect another to bear.
 
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n80 See INTERNATIONAL THESAURUS OF QUOTATIONS, supra note 1.

n81 See Jordan, supra note 2.
 
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Justice Thurgood Marshall offered a way of understanding these issues that should set off a warning light whenever we see the word "choice" used in legal and political contexts to assign responsibility or liability. He reminded us of the interdependence of choice and constraint. He illuminated the way that all choices arise within constraints, but the constraints vary, and thereby alter the range of choices. He paid particular attention to the specific costs people would bear if they exercised a choice, and used this to hold powerful figures, such as public officials, accountable when they claimed that a private individual had a choice to avoid their force.

Perhaps it should not be surprising that Justice Marshall would so acutely  [*2108]  understand the relationships between choice and constraint. He himself chose to work as a lawyer and accept the constraints of legal argument, including procedural rules. n82 Within those constraints, he demonstrated creativity and mastery, much as a master poet can transcend the limits of meter and form. As an African American struggling for racial justice in a racist society, he has lived with constant reminders of the obstacles he devoted his life to overcome. A role model and hero to so many, he said he hoped he would be remembered as one who "did what he could with what he had." n83 He made choices amid constraints, and planted more than imaginary trees.
 
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n82 See Randall Kennedy & Martha Minow, Thurgood Marshall and Procedural Law: Lawyer's Lawyer, Judge's Judge, 6 HARV. BLACKLETTER J. 95 (1989).

n83 Ruth Marcus, Plain-Spoken Marshall Spars With Reporters, WASH. POST, June 29, 1991, at A1, A10. See also Randall Kennedy, Doing What You Can With What You Have: The Greatness of Justice Marshall, 80 GEO. L.J. 2081, 2081 (1992).
 
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